XVW & YZA v GRAVESEND GRAMMAR SCHOOLS FOR GIRLS AND ADVENTURE LIFE SIGNS LTD [2012] EWHC 575 (QB)
FACTS:-
The Claimants were two students who set off on a school trip to Belize in 2005, and were raped by a local man who was the apparent joint owner of the farm/resort where they had been staying. They sued the school and the second Defendant, a specialist company which helped organise the expedition.
On their arrival in Belize, there was a change of plan. The group were recommended to a company called Maya Walks run by a man named Jimmy Juan and his son, Aaron who was a guide. The company was checked by the leaders of the Second Defendant and they carried out a written risk assessment. In return for work done at the resort run by Maya Walks, the group would be given free accommodation.
The group were invited to swim in a local swimming pool. During this time, members of the group witnessed Aaron exhibit inappropriate behaviour and make sexual remarks. After the pool trip, the group attended a local bar, which they left at 10.30 p.m.
During the night, Aaron entered one of the cabins occupied by the Claimants and offered them rum. After some harmless socialising, he raped them and left the cabin.
JUDGEMENT:-Mr Justice McKay said that the planning for this expedition had taken two years, and each of the participants had to accumulate the cost of the holiday through their own exertions. The students who went on this trip were aged between 15 and 17 and were all intelligent well educated young women, who were given a high degree of responsibility for the trip. There was a teacher on the trip and two ex soldiers with substantial experience of this type of trip.
The first argument relied upon by the Claimants was that the Defendants were vicarious liable for the actions of Aaron. McKay considered the following cases:-
· Lister v Hesley Hall Limited [2002] 1 AC 215
· Bernard v AG of Jamaica [2011] EWHC 2871 QB
· Viasystems v Thermal Transfer (Northern) Ltd [2006] QB 510
· JGE v The English Province of Our Lady of Charity and another [2011] EWHC 2871 QB
· EL V the Children’s Society [2012] EWHC 365 QB
McKay J said that the issue of vicarious liability was fact sensitive. Aaron was owner or joint owner of the land and the person who had the power to licence the girls to stay on the farm, but the leaders of the Second Defendant had the direct supervision. In the judgment of McKay J, these facts fell short of a vicarious liability situation.
McKay J then considered direct liability. The Claimant adduced expert evidence from a former headmaster with experience in this area. He pointed to the 1998 good practice guide issued by the Department for Education and Employment entitled Health and Safety of Pupils on Educational Visits. This recommended one adult to ten pupils, although this group had twelve students and three adults, one of whom was a teacher. The Claimant’s expert thought that two teachers would be enough, although the teacher on the actual trip gave evidence to the effect that a second teacher would not always be better. The managing director of the second Defendant gave evidence to the effect that the usual practice was to have one teacher per ten pupils and one leader per eight.
McKay J said that the Claimant’s expert’s suggestion of two teachers was not realistic and certainly the omission of a second teacher could not be described as a breach of the school’s duty of care. No complaint was made as to the approach to this expedition, its organisation, training, equipment or any other feature of it.
Both Defendants agreed that they owed a duty of care in tort to these Claimants, and in the case of the Second Defendant in contract, all of which could be best described as an obligation to take such reasonable care to ensure the safety of the pupils on this trip as would be taken by a reasonably careful parent, in whose place they stood. McKay J referred to the following cases in relation to the existence and scope of the duty of care.
· Dickinson v Cornwall County Council (unreported; Steel J) 10th December 1999
· Dorset Yacht v Home Office [1970] AC 1004
· Caparo v Dickman [1992] AC 605
· Mitchell v Glasgow City Council [2009] 1 AC 874
· Smith v Littlewoods Organisation [1987] AC 241
· X and Y v LB Hounslow [2009] EWCA Civ 286
In Mitchell, the House of Lords said that for a Defendant to be held responsible for the criminal acts of another, it must be readily understandable that the law should regard the Defendant as under a responsibility to care to protect the Claimant from that particular risk. McKay J said that he understood that to be no different from a statement that the imposition of a duty of that scope on the Defendant in those circumstances had to be fair, just and reasonable in the Caparo sense, no more and no less.
The Claimant’s counsel argued that the prior behaviour of Aaron was such as to put the leaders on notice that he was grooming the Claimants as potential victims. However McKay J said that he was satisfied that none of the comments made at the pool were heard by the teacher or the leaders of the Second Defendant. It was not alleged that Aaron had any kind of criminal record, which went undiscovered, or that Belize had any such system. Indeed a female police officer from that country had given him a good reference. The party was constantly supervised by three highly responsible and experienced adults. Short of posting a guard on the door of each cabin, or instituting some system of watch keeping, there would not have no way of preventing the assault. The checks made were reasonable and proportionate, and the leaders of this expedition were not given any reason to foresee this terrible event. The claims would be dismissed.
FACTS:-
The Claimants were two students who set off on a school trip to Belize in 2005, and were raped by a local man who was the apparent joint owner of the farm/resort where they had been staying. They sued the school and the second Defendant, a specialist company which helped organise the expedition.
On their arrival in Belize, there was a change of plan. The group were recommended to a company called Maya Walks run by a man named Jimmy Juan and his son, Aaron who was a guide. The company was checked by the leaders of the Second Defendant and they carried out a written risk assessment. In return for work done at the resort run by Maya Walks, the group would be given free accommodation.
The group were invited to swim in a local swimming pool. During this time, members of the group witnessed Aaron exhibit inappropriate behaviour and make sexual remarks. After the pool trip, the group attended a local bar, which they left at 10.30 p.m.
During the night, Aaron entered one of the cabins occupied by the Claimants and offered them rum. After some harmless socialising, he raped them and left the cabin.
JUDGEMENT:-Mr Justice McKay said that the planning for this expedition had taken two years, and each of the participants had to accumulate the cost of the holiday through their own exertions. The students who went on this trip were aged between 15 and 17 and were all intelligent well educated young women, who were given a high degree of responsibility for the trip. There was a teacher on the trip and two ex soldiers with substantial experience of this type of trip.
The first argument relied upon by the Claimants was that the Defendants were vicarious liable for the actions of Aaron. McKay considered the following cases:-
· Lister v Hesley Hall Limited [2002] 1 AC 215
· Bernard v AG of Jamaica [2011] EWHC 2871 QB
· Viasystems v Thermal Transfer (Northern) Ltd [2006] QB 510
· JGE v The English Province of Our Lady of Charity and another [2011] EWHC 2871 QB
· EL V the Children’s Society [2012] EWHC 365 QB
McKay J said that the issue of vicarious liability was fact sensitive. Aaron was owner or joint owner of the land and the person who had the power to licence the girls to stay on the farm, but the leaders of the Second Defendant had the direct supervision. In the judgment of McKay J, these facts fell short of a vicarious liability situation.
McKay J then considered direct liability. The Claimant adduced expert evidence from a former headmaster with experience in this area. He pointed to the 1998 good practice guide issued by the Department for Education and Employment entitled Health and Safety of Pupils on Educational Visits. This recommended one adult to ten pupils, although this group had twelve students and three adults, one of whom was a teacher. The Claimant’s expert thought that two teachers would be enough, although the teacher on the actual trip gave evidence to the effect that a second teacher would not always be better. The managing director of the second Defendant gave evidence to the effect that the usual practice was to have one teacher per ten pupils and one leader per eight.
McKay J said that the Claimant’s expert’s suggestion of two teachers was not realistic and certainly the omission of a second teacher could not be described as a breach of the school’s duty of care. No complaint was made as to the approach to this expedition, its organisation, training, equipment or any other feature of it.
Both Defendants agreed that they owed a duty of care in tort to these Claimants, and in the case of the Second Defendant in contract, all of which could be best described as an obligation to take such reasonable care to ensure the safety of the pupils on this trip as would be taken by a reasonably careful parent, in whose place they stood. McKay J referred to the following cases in relation to the existence and scope of the duty of care.
· Dickinson v Cornwall County Council (unreported; Steel J) 10th December 1999
· Dorset Yacht v Home Office [1970] AC 1004
· Caparo v Dickman [1992] AC 605
· Mitchell v Glasgow City Council [2009] 1 AC 874
· Smith v Littlewoods Organisation [1987] AC 241
· X and Y v LB Hounslow [2009] EWCA Civ 286
In Mitchell, the House of Lords said that for a Defendant to be held responsible for the criminal acts of another, it must be readily understandable that the law should regard the Defendant as under a responsibility to care to protect the Claimant from that particular risk. McKay J said that he understood that to be no different from a statement that the imposition of a duty of that scope on the Defendant in those circumstances had to be fair, just and reasonable in the Caparo sense, no more and no less.
The Claimant’s counsel argued that the prior behaviour of Aaron was such as to put the leaders on notice that he was grooming the Claimants as potential victims. However McKay J said that he was satisfied that none of the comments made at the pool were heard by the teacher or the leaders of the Second Defendant. It was not alleged that Aaron had any kind of criminal record, which went undiscovered, or that Belize had any such system. Indeed a female police officer from that country had given him a good reference. The party was constantly supervised by three highly responsible and experienced adults. Short of posting a guard on the door of each cabin, or instituting some system of watch keeping, there would not have no way of preventing the assault. The checks made were reasonable and proportionate, and the leaders of this expedition were not given any reason to foresee this terrible event. The claims would be dismissed.